SALEEM Vs. UNION OF INDIA

JUDGEMENT

(1.) The following five questions formulated by a learned Single Judge have been referred to us for decision. 1. "Whether the judgment given in the case of Ibrahim Bachhu Bafan v. State of Gujarat and Ors. (AIR 1985 S.C. 697) is binding on the point, whether the officer who passes the detention order has the power to revoke the order?" 2. "Whether the judgment given in the case of State of Maharashtra & another v. Sushila Mafatlal Shah and others ( AIR 1988 SC 2090) is per incuriam inasmuch as the law laid down in the case of Ibrahim Bachu Bafan (supra) by a larger bench was not taken note of ?" 3. "Where in the grounds of detention the detenu has been given a right to make a representation to the officer, who has passed the detention order, in addition to his right to make a representation to the appropriate Government, still is it incumbent upon the officer concerned not to dispose of the representation made to him at his own level?" 4. "Where the detaining authority had reached the subjective satisfaction keeping in view all relevant material, could the court substitute its own decision?" 5. "Whether no reasonable person could reach subjective satisfaction that the detention order should be passed on the sole ground that passport of the detenu had been seized when particularly the detenu is at large?"

(2.) In the present petition for issuance of writ of habeas corpus the detenu has challenged the order of detention dated the 11th July, 1988 made by a specially empowered officer under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the COFBPOSA Act). It appears from the reference order that during arguments a number of pleas were urged before the learned Single Judge. He has negatived all but two of the contentions. One of those is that the detenu had been effectively prevented from indulging in smuggling activities as he continued to be in judicial custody, not having been granted bail. The further averment in support of this plea was that by virtue of the seizure of his passport, he was unable to smuggle goods. Thus the order made by the detaining authority is without application of mind apart from being punitive in nature. The last two questions, i.e., questions No. 4 and 5 arise out of that argument.

(3.) Another contention is based on the fact that the representation made by the detenu seeking revocation of the impugned order was dealt with and decided by the specially empowered officer himself. The plea is that the appropriate Government being the detaining authority was mandatorily obliged to decide the same as per the law enunciated by the Supreme Court in the State of Maharashtra and another v. Sushlia Mafatlal Shah and others, AIR 1988 SC 2090 and, therefore, the detenu had been deprived of his right under Article 22(5) of the Constitution. The first three questions arise out of this argument.